Law Bear

Notes on court decisions affecting Californians, generally in the area of real estate and environmental law; or which otherwise is of interest to Berkeley lawyer, Peter H. Liederman. As you can probably guess: Nothing in this blog should be considered as legal advice or creates any attorney client relationship.

About Me

Thursday, February 25, 2016

Hi Returning to this blog after a long hiatus. Originally I was dealing with a death in the family, and thereafter with such dismay of the contempt of the concepts of law and democratic government shown by the U.S. Supreme court that adding my own voice seemed almost absurd. But back again and we'll see where it goes.
Per a letter I had published in the San Francisco Chronicle last week, responding to an editorial eulogy on the demise of Justice Anton Scalia, one of the five member junta:

"Justice Scalia did not promote the concept of the Constitution’s “original intent.”
On gun control, Scalia stripped from the Second Amendment the preface to right to bear arms that says “a well-regulated militia” is to the security of the free state. Scalia instead decided the Constitution gave unregulated individuals a right to keep guns for home use.
On voting rights, he violated the express language of the 15th Amendment that gives Congress the power to protect voting rights. He did so by simply claiming that Congress had relied on obsolete facts in maintaining scrutiny over certain states and localities. Along with opening the door to voter suppression, he thus seized for the court an unconstitutional power to overturn any law the Court majority decides is “obsolete”.
As for corporations, which weren’t even in existence at the writing of the Constitution, he gave them “free speech” consisting of the right to spend unlimited amounts to influence elections. Not content, he and his conservative colleagues decided a corporation has a constitutional right to profess a religion on the basis of which it could discriminate.
The writers of the Constitution and its amendments would probably have been appalled."

The gun control cases were District of Columbia v Heller (2008) and McDonald v. Chicago (2010)

The anti voting rights case (and seizure of power by the court to void laws for being what they decide is obsolete) is Shelby County v. Holder (2013)

The (worst of) the Corporate wealth can be used in unlimited amounts to influence elections as free speech is of course Citizens United v. FEC
(2010)

The case in which the court said a corporation could have, and discriminate on the basis of religion is Burwell v. Hobby Lobby Stores (2014)

Sunday, July 1, 2012

Now that California has banned the manufacture and sale of fois gras, the pate made by severely overfed ducks or geese, I eagerly await the formation of the Fois Gras Enforcement Agency (FGEA) modeled on the Drug Enforcement Agency (DEA). Think of the army of informers who can spend their time and taxpayer’s money dining at fancy restaurants, while placing “bugs” in the souffle to catch purveyors of of the livers of overfed geese.
I look forward to the televised raids. The fois pushers (“Chefs”) must not be tolerated. Police will, of course, occasionally have to use their tasers or other “not-usually-deadly” force on anyone who resists being thrown to the floor and cuffed for serving the product of this fowl crime.
With the drug war as our model, we can look forward to law enforcement agencies seizing buildings of those who “innocently” leased to purveyors of finely-ground goose liver, Meanwhile the correctional system and its politically powerful union will happily incarcerate in its cages any traffickers of the greasy paté.
Young scofflaws must be stopped. The State will deny scholarships to teenagers caught “dining” on the “goose stuff” on prom night. Likewise, we will have the chance to deport any family that receives a can Fois Gras back to where-ever it was they immigrated from.
Every three or four years we will all be entertained when some ambitious prosecutor launches a Grand Jury probe, threatening some celebrity with years in prison for falsely claiming he or she “thought it was liverwurst”.
Think of the hundreds of thousands that can be spent for trips of politicians to see what can be done to interdict the supply from France through such smuggling havens as Cannes or St. Tropez. Think of the millions for helicopters to fly over the outskirts of Petaluma looking for illegal Fois Gras farms.
Squandering life, liberty, justice, and property is a price we should be willing to pay for such legal bans on activities properly left to informed personal choice.
But as they say, what’s good for the goose, is good for the squander.

Experience of Living with Pacemaker for bradycardia
Away from my usual subjects: Whenever asked if it is better to consult the head or the heart my answer has long been "both".
Very recently, after visiting my physician to ask about some odd sensations like I was briefly light-headed or fatigued, I was attached to various heart monitoring tests after which each technician looked at me with some concern, pronouncing that my heart rate was slower than the test taken a day or two earlier in the week. The slow heart rate goes by the medical name, bradycardia I was advised that I definitely needed a pacemaker to speed things up. I should get it sooner than later. I am an age when this is not an uncommon problem or recommendation.
What has perplexed me after a day of web-searching is the virtually complete lack of first hand accounts of people of my age group living with pacemakers. There seem to be multitudes of accounts by the makers of these things of how useful they are medically, how rare the complications, and some stories by people who had pacemakers implanted in their childhood, and so on, but nothing by individuals experiencing it about what it feels like to live with this foreign control speeding one's heart rate. Does it free them, energize them, depress them, scare them? Any comment?

If anyone has been following this, well to say the least it has been left dormant, first by a death in the family and then because it was hard to get back to between working on a case that involved soil contamination from a dry cleaning, and trying to put my rare fee hours into working against the entirely destructive Citizen's United decision.
As to the SCOTUS citizen's United Decision, just a week ago and a few days prior to the more watched decision on the Affordable Health Care Act, the court upheld a challenge to Montana's state-based rejection of the decision. The Scalia-Roberts-Thomas-Kennedy-Alito junta refused to consider Montana's argument, that unlike the Supremes, Montana was convinced that unlimited corporate funds funneled to push one view in an election could indeed corrupt the process. One "factual" pillar of the Citizen's United v. Federal Election Commission case was that the junta justices just couldn't see any evidence that money corrupts politics.
Some 22 states, including California, signed a brief in support of Montana's interpretation. On the other hand the Citizen's United organization itself submitted a friend of the court brief suggesting that Montana's decision would, God forbid, roll back "corporation's first amendment rights". It is almost unimaginable that anyone drafting a constitution, in 1789 or 2012, would conceive of granting corporations the same free speech rights to corporations as to humans with the right to spend unlimited shareholder's funds to saturate the channels of communication with their message. But the SCOTUS junta thinks that corporations will spend money to cement their right-wing agenda into the political structure, and they have the votes.
The long term solution will be a constitutional amendment reversing the absurdities of corporate person-hood and the view that unlimited funds cannot overcome virtually all of the intended purposes of free speech, press, and debate. The shorter must be to keep Republicans away from the presidency long enough to appoint a fifth justice who will return some common sense to the court.
PHL

Thursday, April 22, 2010

I suppose this is one of those issues that only law students (and big corporate defendants) could love.

The ninth circuit, the local Federal appellate level, just decided that a law that allows the Federal courts to "remove" a class action lawsuit asking for more than $5 million from a state court should be interpreted to keep the case in the Federal court system even after concluding that it was never properly a class action case to begin with, and if properly brought, was originally ineligible to be considered by the Federal courts.

The court was United Steel (Union) v. Shell Oil Co.

Usually the Federal courts only have jurisdiction if a Federal law is involved, or if no defendant is from the same state as the plaintiffs and the amount in controversy exceeds a particular level. Under the law in question the rules for diversity are much looser if it is a class action and the amount in controversy is $5 million.

The court reasoned that once a Federal court takes a "diversity case", jurisdiction continue even though, for example one of the parties moves, or the amount in controversy falls below the required limit. However here the court considers the preliminary matter: does the case constitute a class action?, and decides it doesn’t, but keeps jurisdiction under a law that only applies if it does.

The judicial decision admitted that the law as written does not demand this result, but goes along with two other appellate circuits.

Since this decision favors big corporate defendants who are the most likely targets of class action suits, do not expect the tea party types to challenge this new expansion of Federal power at the expense of the states, just as they have not challenged diminution of individual rights represented by the the Supreme Court's Citizens United case that gave unlimited rights to corporations to buy election advertising.

Monday, March 29, 2010

The earth and its non-human life forms need, as the saying goes, a good lawyer. Is a party a development? Nonetheless, the language that we mutually use to navigate our human interactions is also part of our environment, and this last week a state appeals court case Gualala Festivals Committee v California Coastal Commission in my view trashed the environment of the English language to protect some startled cormorants.

The case arose when, presumably on the strength of concern that the event had ruffled the feathers of some local seabirds, the Commission decided that a Fourth of July fireworks display in Gualala California, was a “development” subject to licensure by them (the Commission, not the birds).

Sometimes, I have imagined going before a jury with a nice cheesy pizza and slowly pulling apart two slices and explaining that while the cheese retains its shape and attachment, you may still be speaking the truth if you say you have only one piece. But as the cheese stretches and sags your argument becomes more and more tenuous. Finally when there is only a long stretchy shred connecting them, or they have separated entirely, then the “truth” is that they are no longer the same piece of pizza, and any argument otherwise is dishonest. In the Gualala case the shred was thin to the point of invisibility connecting a single traditional Independence Day celebration with the kind of “development” for which the Coastal Commission is supposed to issue or withhold permits. If a one-time noisy celebration of a political event, must be permitted by the Coastal Commission then any human activity near the coast, particularly a loud political demonstrations, could theoretically be subject to such permitting or a cease and desist order if not obtained.

Fireworks used to scare the heck out of my dog, and no doubt some birds would be alarmed. I don't doubt they pollute the air for at least an evening, but fireworks regulation should be decided by political process, not by courts adding unintended meanings to common words in order to protect the natural environment.

But add 73,500 feet to a shopping center....In contrast with the above case: an appellate court case reported today, Melom v. City of Madera, hacked away at the usual meaning of the flexible but common word "substantial" to diminish environmental protection. A state appellate court decided that expansion of a mega store in a shopping mall by 73,500 square feet,-fifty-nine percent bigger than had been approved under the project's Environmental Impact Report- was not a “substantial change" that would require major revisions of the environmental impact report.”

Sunday, March 21, 2010

"All persons born or naturalized in the United States...are citizens of the United States..." (14th Amendment).

In considering immigration “reform,” the very worst thing we can do is create a class of people native to the United States but without any country. The faction that wants to deprive children born here to an education or medical care or civil rights because their parents are without documents should read the 14th Amendment to the Constitution and realize what a wise and appropriate thing it is that anyone naturally born here is our fellow citizen. They should also consider what an evil and destructive act it is to declare a baby born on our soil stateless.

It astounds me that so many people people who talk about curbing illegal immigration pass quickly from espousing a respect for law, and concern for the American labor, to saying that a baby born here of an undocumented mother has no rights as citizen, or to health care or education. That so many of the people who claim to want to control illegal immigration espouse this view, strikes me as evidence of a deep racism and hatred of foreigners, particularly women and children, that has nothing to do with defending our country's sovereign right to control its borders.

Additionally to deprive people born here of rights as citizens is not just a slippery slope but a dive down a chasm of conditional citizenship. If we are to deprive the child born here of an “illegal” immigrant what about the grandchildren of at least one person who came here without documentation? What about their grandchildren? If born here, and you may still be disqualified as an American, why should having an undocumented mother be the only criteria? Could having an ancestor who is Jewish, or Chinese, or felonious, or a registered Republican disqualify you?

"We hold these truths to be self-evident, that all men are created equal..." (the declaration of Independence) It is still a good starting point for policy in our country. Peter H. Liederman